NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

Transcription

1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representatives: Form of Appeal: WCB Claim No.(s): [X] Oral Hearing, June 10, 2009, Halifax, NS [X] Date of Decision: July 30, 2009 Decision: The appeal of the December 23, 2008 Board Hearing Officer decision is allowed, according to the reasons of Appeal Commissioner Andrea Smillie.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: The Worker suffered compensable knee injuries on September 5, He was awarded a 12% permanent medical impairment [ impairment ] rating for each knee. Following a reassessment in April of 2000, he was awarded a total of 30% (15% for each knee). The Worker sustained a further compensable right knee injury on September 8, His impairment rating for his right knee was increased by a further 6%, however, it was attributed to his 1986 claim. He was also awarded a 6% pain related impairment rating in relation to his 1986 claim, bringing his total impairment rating to 42%. The Board recognized the Worker s loss of lung function as an occupational disease under the automatic assumption provisions in the Workers Compensation Act, S.N.S , c.10, as amended [the Act ]. He was awarded a 20% permanent medical impairment rating for his loss of lung function, effective February 5, On March 8, 2007, the Worker requested that the Board commute the permanent impairment benefit award associated with this 20% rating, and provide him with a lump sum payment. The Worker s request was denied in a case manager decision dated April 17, This decision was appealed to a Hearing Officer and ultimately to the Tribunal. In Decision RTH (January 31, 2008, NSWCAT) the presiding appeal commissioner referred the issue of the Worker s entitlement to a commutation of the 20% award back to the Board. The Board was directed to determine whether or not the Worker was entitled to extended earnings replacement benefits and also to determine the interplay between Board Policy 3.7.2R and The referral back to the Board led to a case manager decision on July 8, 2009, which denied the Worker s request for commutation of his 20% impairment rating. This was upheld in the Hearing Officer s decision of December 23, 2008, now on appeal to the Tribunal. At the hearing before the Tribunal, the Worker provided sworn testimony. His representative made submissions, as did the Employer s representative. The Board did not provide evidence or submissions to the Tribunal. This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.

3 3 ISSUE AND OUTCOME: Is the Worker entitled to a commutation of the 20% permanent impairment benefit awarded in relation to his 20% impairment rating? Yes. The cumulative permanent medical impairment rating referred to in Board Policy 3.9.5, only applies to impairment ratings for injuries occurring on or after March 23, Consequently, under Policy 3.9.5, the Worker is entitled to a commutation without application, because his impairment rating is less than 30%. ANALYSIS: Section 74 of the Act states: (1) Payments of compensation shall be made in the manner and form as may appear to the Board to be most convenient. (2) Subject to subsection (3), the Board may, where in the opinion of the Board it is to the advantage of the Worker to do so, (a) commute any compensation payable as periodic payments to a lump sum; and (b) pay any compensation payable as a lump sum in periodic payments. (3) Without restricting the generality of subsections (1) and (2), where (a) a workers permanent-impairment rating according to the rating schedule prescribed pursuant to Section 34 does not exceed thirty percent; or (b) no extended earnings-replacement benefit is payable to the worker after a review pursuant to clause 73(1)(a), the Board may pay to the worker a lump sum in lieu of the workers permanent-impairment benefit. The Worker does not receive extended earnings replacement benefits from the Board. Section 34 of the Act provides for the establishment of a permanent impairment rating schedule to be applied in calculating awards for permanent impairments resulting from injuries. Policy 3.3.2R2 establishes the use of the Board s Guidelines for the Assessment of Permanent Medical Impairment to be utilized where an injury arises prior to January 1, Policy 3.3.4R dictates the use of the American Medical Association s Guides to the Evaluation of Permanent Impairment [the AMA Guides ] to be utilized for injuries arising

4 4 after January 1, The Worker has injuries both before and after this date. The ratings set for his knee injuries were made pursuant to the Board s Guidelines for the Assessment of Permanent Medical Impairment. His 20% impairment rating for loss of lung function was awarded with reference to the AMA Guides. Board Policy 3.7.2R deals with permanent disability pensions for injuries arising before March 23, It contains detailed descriptions of the types of commutations that the Board will consider for impairments both less than and more than 10%. Decisions on whether or not to commute a pension must focus on the best long-term interests of the worker and whether or not the commuted pension is going to be used for an approved purpose. Board Policy applies to workers injured on or after March 23, It provides that the Board will commute, without application, a permanent impairment benefit if the worker s cumulative permanent medical impairment rating is 30% or less and the worker is not receiving extended earnings replacement benefits. If the permanent medical impairment rating is greater than 30%, the Board may, under certain circumstances, also commute the pension. In Decision AD (July 19, 2005, NSWCAT) the commissioner directed the Board to consider, in similar circumstances, whether one or both of Policies 3.7.2R or applied. As noted, the Tribunal previously referred this issue back to the Board in Decision RTH (January 31, 2008). In Decision AD (October 20, 2008, NSWCAT), the Worker sought commutation of a 10% permanent impairment benefit. He had previous permanent medical impairment awards which put him 3% over the automatic 30% commutation level in Board Policy The Appeal Commissioner concluded that the Worker was entitled to a commutation of his periodic benefits, even though his cumulative rating considering injuries both before and after March 23, 1990 exceeded the 30% automatic commutation in Policy 3.9.5, because the impairment benefits paid to the Worker in relation to his pre-march 23, 1990 injuries had been paid out in lump sums. He found this was evidence that commutation would be in the best long-term interest of the worker, so commutation of the remaining 10% was consistent with the intent of Policy In this case, there has not been a prior commutation of any of the Worker s impairment awards. The issue in this case is whether or not the cumulative impairment rating referred to in Policy is meant to include ratings tied to injuries occurring prior to March 23, 1990, as well as those occurring after March 23, There is little guidance in the decisions previously cited.

5 5 The Hearing Officer found that the criteria for allowing commutation of the Worker s 20% permanent medical impairment benefits had not been met because the cumulative permanent medical impairment rating was not less than 30%. She stated: While it is true that his injuries following March 23, 1990 have resulted in a PMI of less than 30% (20% PMI for automatic assumption), this policy speaks to the cumulative PMI rating. The cumulative rating (and this is supported at the top of page two in the WCAT Decision of January 31, 2008) is 62%. It is not reasonable to differentiate between the total PMIs that accumulated before March 23, 1990 and the total that accumulated after March 23, 1990 for the purposes of determining the cumulative PMI rating. As such, this part of Policy prohibits the commutation of the benefit associated with the Worker s 20% PMI. The Hearing Officer then went on to consider whether or not the Worker had met the criteria for commutation of permanent medical impairment where the cumulative rating is greater than 30%. She found that he did not meet all six of the exception criteria and therefore was not entitled to a commutation of his 20% impairment rating for automatic assumption. I do not find that Tribunal Decision RTH (January 31, 2008, NSWCAT) supports finding that the Worker s cumulative rating for the purposes of Policy is 62%. The commissioner did state that the Worker s cumulative PMI award equalled 62%, however, I do not find that this was an interpretation of the term as used in Policy because the outcome of the decision was a referral back to the Board to determine if Policy was intended to control only benefits associated with injuries arising on or after March 23, The Commissioner stated that if Policy was intended to control only benefits associated with injuries arising on or after March 23, 1990, then the Worker s cumulative permanent medical impairment rating was arguably less than 30%, and therefore, the Worker could be entitled to a commutation without application. The term cumulative is not defined in the Policy or the Act. I agree with the Worker s representative s argument that Board policies must be read in conjunction with the Act. Both the Act and Board policy set out very different approaches concerning entitlement to benefits, and the calculation of benefits payable, for injuries arising prior to March 23, 1990 as opposed to after March 23, This is seen in the policies governing the calculation of temporary and permanent benefits, including chronic pain benefits, and the payment of annuities. Therefore, it seems unlikely that impairment ratings for injuries both before and after March 23, 1990 were intended to be treated as one cumulative rating. Also, the criteria contained in Policy is very different from the criteria contained in Policy 3.7.2R in terms of the considerations when determining if commutation is allowed. Given this very different criteria, depending on the date of injury, I do not find it reasonable

6 6 to assume that the reference to cumulative permanent medical impairment ratings in Policy is meant to include ratings for injuries which have occurred prior to March 23, This interpretation would be inconsistent when viewed in the context of the entire Act and Board Policy. Consequently, I find that the term cumulative in Policy is not meant to include permanent medical impairment ratings for injuries which occurred prior to March 23, Therefore, the Worker s cumulative impairment rating is 20% and he is entitled to an automatic commutation under Policy It is not necessary to determine if he meets the criteria for an exception under the Policy. CONCLUSION: The appeal is allowed. The Worker is entitled to a commutation of his 20% permanent medical impairment rating. th DATED AT HALIFAX, NOVA SCOTIA, THIS 30 day of July, Andrea Smillie Appeal Commissioner